Archives for September 2010

On September 29, 2009, in an unpublished decision, the United States Court of Appeals for the Fifth Circuit dismissed an appeal of a preliminary injunction enjoining enforcement of the government’s moratorium on deepwater drilling in the Gulf of Mexico following the Deepwater Horizon incident. The court determined that if could not grant relief because the preliminary order enjoining the moratorium, which was issued on May 28, 2010, was subsequently rescinded by the Secretary of the Interior. The rescinded moratorium meant that “the preliminary injunction no longer has the same, if any, legal or practical effect.” After this action by the Secretary, the present appeal became mooted.

The majority’s opinion drew strong criticism from a dissenting judge, who concluded that it was the court’s “duty under the Administrative Procedure Act (“APA”) to decide expeditionsly and finally whether the [Department of Interior] acted arbitrarily in issuing its 6-month deepwater drilling moratorium.” One interesting point raised by the dissent was the concern that “there is a genuine legal question whether the first moratorim continues to have force and effect.” In short, the dissent questioned whether the Secretary had the legal authority “to revoke the first moratorium and enter the second if such an action would strip [the court] of jurisdiction.”

The Eleventh Circuit recently addressed the interplay between the Public Vessels Act (“PVA”) and the Suits in Admiralty Act (“SAA”) as it related to negligence claims against the Coast Guard. In Uralde, the Coast Guard dispatched a boat to intercept a private vessel trying to illegally enter the United States with several Cuban citizens. A chase ensued, and it did not end until a Coast Guard officer fired two rounds into the private vessel’s engine. The sudden stop caused one of the passengers to strike her head, an injury which eventually led to her death. The plaintiff-widower launched a negligence suit against the Coast Guard, and his negligence theories were “based in the Coast Guard’s decisions regarding whether and how to provide proper medical care and timely access to medical treatment of a passenger on a private vessel interdicted at sea.”

Analyzing both Acts together, the Eleventh Circuit determined that “the sovereign immunity waivers of the PVA and SAA now cover all relevant admiralty claims involving public vessels. Claims seeking relief for damages caused directly by a public vessel, or by the negligent operation thereof, fall under the PVA. The SAA covers all remaining admiralty claims, including those simply ‘involving public vessels.’ Accordingly, when Coast Guard personnel are negligent in performing functions other than those ‘in the operation of’ public vessels, the claims arising from those acts fall under the SAA, rather than the PVA.” Uralde, at *3 (internal citations omitted).

In this case, the plaintiff-widow’s claims did not involve the Coast Guard’s operation of a public vessel. As such, his claims fell under the SAA.

A recent unreported case by the United States Court of Appeals for the Fifth Circuit addresses the scope of Section 8(i) settlement agreements. In Cooper, a man was seriously injured while loading supplies aboard a docked vessel when the wake of an unidentified vessel caused the gang plank to shift, pinching his leg. The Claimant and his Employer agreed to a Section 8(i) settlement under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) and the District Director issued a compensation order. Neither party appealed to the Benefits Review Board and 30 days later the order became final.

The Claimant then filed a lawsuit in U.S. District Court against his Employer seeking damages, maintenance, and cure. He argued negligence under Section 905(b) of the LHWCA. The Employer filed a motion for summary judgment asserting that Claimant’s additional claims were barred by res judicata and that the District Court lacked jurisdiction to review a final compensation order. The District Court granted summary judgment in favor of the Employer and Claimant appealed to the Fifth Circuit.

The Fifth Circuit affirmed the District Court’s grant of summary judgment, finding that regardless of whether the compensation order reflected the precise agreement of the parties, the U.S. District Court lacked jurisdiction to interpret the order. The Claimant should have sought reconsideration by the District Director or appealed to the Benefits Review Board, which he failed to do. Additionally, the Claimant argued that the compensation order only released the Employer from further compensation, not damages. The Court, however, found that the language of the compensation order was broad enough to bar “any and all claims of whatsoever nature” under res judicata.

Although it originally appeared that the National Average Weekly Wage percent increase would rise from 2.00% to 2.60% on October 1, 2010, the United States Department of Labor’s website states that the new NAWW percent increase is 2.63%. The following changes take effect on October 1, 2010: